“What part of illegal don’t you understand?” Immigration rights opponents invoke the question so often it hardly brings a response anymore. Our nation has treated the immigration process differently, with a separate court system and a system of enforcement that is more in line with civil proceedings.
As the issue has heated up, however, more people appear to see it as a criminal matter, like theft and assault.
If that’s the case, then changes are needed in our system of enforcement. And if a recent ruling in California is any indication, such changes might be forthcoming.
U.S. District Judge Dolly Gee ruled last month that the federal government must provide representation for two mentally disabled men who were fighting detention orders. Immigrants traditionally aren’t entitled to public representation in immigration court, but the ACLU filed motions in the two men’s cases, arguing that mentally disabled people can’t adequately argue their cases, and can’t be assured of a fair hearing without representation. The organization filed suit in March on the men’s behalf, and refiled it in November as a class action case, with other plaintiffs. Some of the plaintiffs are in this country illegally; others are legal residents who are fighting deportation orders.
The lawsuit applies only to people with mental disabilities. Gee’s ruling is specific to the two men and only mandates representation; it does not specify that the attorney must be a licensed lawyer.
However, the issues and arguments warrant consideration. ACLU’s petition argues that the detainees were being deprived of equal protection of the laws and that failure to provide representation violates federal anti-discrimination laws.
Our Constitution’s 14th Amendment specifies that we all must be guaranteed equal protection of the laws; the 5th Amendment states that no one can be deprived of life, liberty or property without due process. In most courts that includes the right to representation; it does not apply to immigration courts.
As increasingly punitive measures against illegal immigrants become law, however, the demarcation between the two court systems might warrant a new look.
People accused of being in this country illegally are subject to incarceration. Greater penalties are being decreed in several states, and the Texas Legislature will consider bills that impose criminal penalties for trespassing and other offenses.
As in other courts, immigration judges have made mistakes. Legal residents and even U.S.-born citizens have been deported erroneously. Stakes are getting higher and the consequences of deportation are getting more severe, both here and abroad. People sent back to some countries — even Mexico these days — could find difficulties that range from trouble finding a place to live and work to even the threat of violence.
It might be time to bring immigration courts more in line with other systems of jurisprudence, including rules ensuring that those facing deportation are entitled to fair treatment and due process.
If lawmakers are bent on treating accused illegal immigrants more like criminals, then that treatment should also include the rights and protections that other criminals already have, as defined in our Constitution.